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By: Montana L. Sinn

Now that Marijuana is legal in Illinois for recreational and medical use many employers are concerned with pre-employment drug testing. Illinois law differs in some respects to federal law with drug testing in the workplace and under the Supremacy Clause, it is important to remember that federal law generally, takes precedence over state laws.

  1. Is pre-employment drug testing required? It depends.

In Illinois, the law does not require or prohibit marijuana drug-testing, but it has been suggested that those employees who will work in “safety-sensitive positions” should undergo drug-testing. However, under Federal law, if an employee performs a safety-sensitive transportation function, or the employer is regulated by a federal agency or organization, the employee must undergo testing for controlled substances prior to the first time the employee performs safety-sensitive functions for the employer.

Generally speaking, a safety-sensitive position is any job where the employee’s tasks affect the safety of themselves or others. To determine whether an employee occupies a safety sensitive position, courts may inquire whether the employee’s duties were fraught with such risks of injury to others that even a momentary lapse of attention could have disastrous consequences. Those employees who work with in the aviation industry, railroad, highway, and water industries, and  operation of heavy equipment, such as forklift operators, tractor operates, engineering operators, and crane operators are considered “safety-sensitive positions.”

  1. When is drug testing required under federal law?

Under Federal law, drug testing is required when the employee holds a federally regulated license (i.e. CDL) or works for an employer regulated by a federal agency or organization and works in a “safety-sensitive position.” Federal law requires drug testing to occur at various stages of employment, including but not limited to, pre-employment, post-accident, random, reasonable suspicion, and return-to-duty.

  1. If an applicant tests positive for marijuana in their system, is the company allowed to hire them? It depends.

Under Federal law, if the individual has a federally regulated license (i.e. CDL) or works for an employer regulated by a federal agency or organization and works in a “safety-sensitive position” and tests positive in a pre-employment drug test, the employee must complete the following steps prior to starting the federally regulated safety-sensitive function: (1) Undergo an evaluation by a Substance Abuse Professional (SAP); (2) Successfully complete any course, counseling or treatment prescribed by the SAP prior to returning to service; (3) Undergo a follow-up evaluation by the same SAP; and (4) Provide a “negative” urine specimen.

However, if the employee is not federally licensed and does not work for an employer regulated by a federal agency or organization, the employee is subject to the employer’s drug-policy. Under Illinois law, employers are allowed to enforce their own drug-policy, as long as the policy is applied in a nondiscriminatory manner.

In conclusion, if you’re an employer and you’re questioning whether you are required to drug-test any of your employees for marijuana, ask yourself the following questions. Is my business regulated by a federal agency or organization? Does the employee perform work under a federal license? Will the employee be performing safety-sensitive functions? If the answer was yes to any of the questions above, then your employees should be drug-tested. As an employer, if you have questions regarding your workplace policy we are available for consultation.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.